ethics

Washington Bar Association allows virtual law offices

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Washington Bar Association Allows Virtual Law Offices

The Washington State Bar Association wasn’t the first bar to consider the ethics of lawyers practicing law from virtual law offices and it won’t be the last. It did, however, write one of the more sensible opinions on this phenomenon, Advisory Opinion 201601.

The reasonable tone was set from the very outset, when the Committee on Professional Ethics explained that the phenomenon of lawyers practicing law from outside of their offices was not a new one and was simply a sign of changing times: “Increasing costs of doing business, including the costs associated with physical office space, have motivated lawyers to rethink how they deliver legal services. Many lawyers are choosing to do some or all of their work remotely, from home or other remote locations. Advances in the reliability and accessibility of on-line resources, cloud computing, and email services have allowed the development of the virtual law office, in which the lawyer does not maintain a physical office at all. Although this modern business model may appear radically different from the traditional brick and mortar law office model, the underlying principles of an ethical law practice remain the same.”

Next, the Committee turned to the requirement in some jurisdictions that a law firm must have a physical office address, noting that Washington has no such rule. And, unlike some other states, there is no need for Washington lawyers to include a physical address on lawyer advertising, “(a)s long as it is not deceptive or misleading…(a) lawyer may use a post office box, private mail box, or a business service center as an office address in advertisements.” Similarly, lawyers must also refrain form misleading colleagues and others - through communications or otherwise - into believing that the lawyer is part of a brick and mortar firm.

The Committee then moved on to addressing the ethics of virtual lawyers storing all firm data online, such as in a legal practice management system, and concluded that lawyers may ethically store confidential client data online “as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.”

Factors that the Committee suggested lawyers take into consideration when using cloud computing software in their virtual law firm included:

Lawyers have a duty of general technology competence
Lawyers must thoroughly vet cloud computing vendors to ensure data is stored securely
Lawyers must ensure that there are sufficient data backup procedures in place
The agreement with the vendor should ensure that lawyers area able to retrieve law firm data in a readable format and that it includes breach notification clauses
Because technology can change quickly, lawyers have a continuing duty to monitor and review the adequacy of the vendor’s security procedures.

Importantly, the Committee acknowledged that in 2017, due to technology advancements, including secure online client portals, email is not necessarily the best way for lawyers to communicate with clients, regardless of whether the law firm has a virtual office or a brick and mortar office. Like the American Bar Association (in Formal Opinion 11-459) and the Texas Bar (in Ethics Opinion 648), the Committee warned against using email in some cases: “Lawyers in virtual practices may be more likely to communicate with clients by email. As discussed in WSBA Advisory Opinion 2175 (2008), lawyers may communicate with clients by email. However, if the lawyer believes there is a significant risk that a third party will access the communications, such as when the client is using an employer-provided email account, the lawyer has an obligation to advise the clients of the risks of such communication.”

In other words, the Committee issued a well reasoned opinion that acknowledged the rapid pace of technological change. As such, its determinations include elastic standards that will no doubt withstand the test of time. Well done Washington State Bar Association! Let’s hope other bars that have not yet addressed these issues will follow in your footsteps.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Email Tracking: Is It Ethical For Lawyers?

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Email Tracking: Is It Ethical For Lawyers?

Lawyers have been using email for more than two decades now. Years ago, in the early 1990s, most jurisdictions did not permit lawyers to use email to communicate with clients. But in the mid-1990s, the tide shifted as email began to emerge as an essential communications tool for businesses. It was the ABA that first issued an ethics opinion green lighting the use of email for client communication, and other jurisdictions soon followed.

Since lawyers have been using email for so many years now, you’d think that all potential ethical issues relating to email would be resolved at this point, but like most technology, email is always evolving. While some lawyers continue to use email technology that is premise-based, others rely on web-based email. And for those lawyers, new tools are constantly being released that are designed to augment the functionality of web-based email. These tools can help lawyers to accomplish any number of goals, including encrypting their emails, streamlining their inbox, creating “to-dos” its using emails, “snoozing” emails for review at a later date, or tracking outgoing emails.

It’s the last function - tracking emails -that was at issue in an ethics opinion issued by the Alaska Bar Association Ethics Committee in October. At issue in Opinion 2016-1 was whether it “was ethically permissible for a lawyer to use a ‘web bug’ or other tracking device to track the location and use of emails and documents sent to opposing counsel.”

In reaching its determination, the Committee noted that the features of email-tracking tools can vary widely, with the more robust software including the ability to track: 1) when the email was opened, 2) how long the email was reviewed (including whether it was in the foreground or background while the user worked on other activities), 3) how many times the email was opened, 4) whether the recipient opened attachments to the email, 5) how long the attachment (or a page of the attachment) was reviewed, 6) whether and when the subject email or attachment was forwarded, and 7) the rough geographical location of the recipient.

The Committee explained that the most troubling aspect of these programs is that they permit attorneys intrude upon opposing counsel’s work product by tracking how the attorney uses a particular document: “The tracking device could enable the sending lawyer to learn how much time the receiving lawyer spent reviewing the communication – including even specific pages of documents – or how frequently the communication was viewed (a proxy for how important the receiving lawyer deemed it to be), whether and when it was forwarded either to the client or co-counsel or otherwise, the location of the recipients, and the details of the recipients’ review of the document.”

Accordingly, as the Committee explained, even if use of the tracking software is disclosed, its application to emails sent to opposing counsel is ultimately both dishonest and unethical. Thus, the Committee concluded that: “(T)racking electronic communications with opposing counsel through “web bugs” impermissibly and unethically interferes with the lawyer-client relationship and the preservation of confidences and secrets….(reflecting) at a minimum, the lack of straightforwardness that is a hallmark of dishonest conduct…Sending ‘bugged’ emails or documents or other communications with embedded tracking devices constitutes an impermissible infringement on the lawyer’s ability to preserve a client’s confidences or secrets as required by Rule 1.6[11] and violates Rule 8.4(a) and (c).”

The only other state bar that I’m aware of that has addressed this issue is the New York State Bar, and it reached a similar conclusion in 2001 in Opinion 749. The Committee on Professional Ethics determined that a lawyer may not “use available technology to surreptitiously examine and trace e-mail and other electronic documents.”

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Technology Competence: It’s Your Ethical Obligation

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Technology: it’s a topic many lawyers have chosen to ignore. There are many reasons for this. First, for hundreds of years, lawyers practiced law quite adequately without the assistance of technology, thank you very much. And then, even when it became apparent that technology could improve some aspects of legal practice, it was still possible to function without it.

And then, right after the turn of the millennium, everything changed. Technology began to advance at incredible rate, affecting all aspects of our culture, from the ways that we consumed entertainment and the methods that we used to communicate with loved ones and friends to the tools used to conduct business. With the advent of social media, smartphones, tablets, cloud computing, wearables, and the Internet of Things, the world as we knew it was turned upside down. And these changes occurred quickly — so much so that if you weren’t paying attention, it seemed as if the world was passing you by.

Such was the case for the vast majority of lawyers, many of whom simply put on blinders and ignored the rapid advancements. At first, some believed that the changes were more of a fad than a phenomenon. And when it became clear that it was the latter, many felt overwhelmed at the thought of trying to catch up, and simply followed the path of avoidance.

However, beginning in 2012, that option was removed from the table as the tide began to turn. That was the year that the American Bar Association adopted an amendment to Comment 8 to Model Rule 1.1, imposing an ethical duty on lawyers to stay abreast of changes in technology. The comment now reads as follows:

Maintaining Competence

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added).

Since that amendment was enacted, 23 states have followed suit and have likewise adopted
the revised comment to Rule 1.1. New York is one of those states and joined the bandwagon in March of 2015.

If you still remain unconvinced that you have an obligation to learn about and understand technology, then perhaps the words uttered by the president-elect of the American Bar Association as she accepted the position last week at the ABA’s annual meeting in San Francisco will persuade you: “(I)t is clear that the longer our profession refuses to adopt and adapt its practices to new technologies, the more opportunities there are for alternative services providers and web-based platforms that have found ways to use technology to provide legal services in a more efficient and less costly manner—in many cases reaching people previously unserved by traditional providers of legal services.”

Let this be a rallying cry to my fellow attorneys: technology is here to stay. Hiding your heads in the sand is no longer an option. You have an ethical duty to learn about technology and make educated, informed decisions when choosing the right tools for your law practice. It won’t be easy and it will take time and effort. But it will pay off in the long run.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Prosecutors, social media evidence, and ethics

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Prosecutors, social media evidence, and ethics

On many occasions I’ve written about the importance of understanding your ethical obligations when mining social media for evidence. This duty is particularly important when it comes to prosecutors. After all, their actions can affect the constitutional rights of those accused of crimes and the interests of those against whom crimes have alleged to have been committed.

This is an issue that is becoming increasingly relevant now that social media is commonplace. When social media first emerged on the scene, lawyers weren’t sure what to make of it. But astute litigators were among the first to comprehend the potential impact of evidence gleaned from social media upon the litigation process. And, because prosecutors spend their days in the courtroom, some of the first instances of allegations of impropriety relating to the mining of social media for evidence involved their actions..

I wrote about one such incident back in June 2013. In that case, former Cuyahoga County, Ohio, Prosecutor Aaron Brockler had admitted to assuming the alias of a woman on Facebook and then contacting alibi witnesses of an accused killer whom he was prosecuting. He pretended to be a fictitious former girlfriend of the accused and then engaged the witnesses in a Facebook chat, during which he encouraged the witnesses to change their testimony. When his actions were discovered, he was terminated on the grounds that his actions were unethical.

At the time, Brockler maintained that his deceptive actions were perfectly acceptable. He was seemingly oblivious to his ethical obligations and remained resolute in the assertion that his actions were not problematic, telling the Sun News: “Law enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth … I think the public is better off for what I did.”

Unfortunately for Brockler, in January of this year, the Board of Professional Conduct of the Supreme Court of Ohio begged to differ. (See: Slip Opinion No. 2016-Ohio-657).

After reviewing Brockler’s actions, the Board concluded that his actions were clearly unethical: “We…find that Brockler’s use of a deceptive investigative technique to contact Dunn’s alibi
witnesses violated Prof.Cond.R. 8.4(c) and (d)…We also find that a one-year suspension, fully stayed on the conditions recommended by the board, is the appropriate sanction for Brockler’s
misconduct.”

The dissenting judge went even further, and I tend to agree with his conclusion that a stayed suspension was an inadequate penalty given Brockler’s actions and his failure to uphold the duties he owed to the public as a prosecutor: “Brockler actively hindered the pursuit of justice in a criminal proceeding on multiple occasions, by lying to alibi witnesses in an effort to make them change their statements. He made every effort to hide his deceptive activities until they were uncovered, and then he refused to admit that his actions were wrong…Failing to require Brockler to serve even a single day of his suspension does little to establish that this court will ensure the integrity of prosecutors and the ethical administration of justice.”

Whether you agree with the penalty or not, the lesson to be learned is clear: attorneys, whether prosecutors or otherwise, should tread lightly when mining social media for evidence. If you intend to seek data found online for use in litigation, it’s important to understand both your ethical obligations and the ins and outs of the social media platforms that you intend to mine for evidence. Otherwise, you might find yourself in the same boat as Brickier—and that’s not a place you want to be.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Colorado Bar on connecting with judges and researching jurors online

Stacked3This week's Daily Record column is entitled "Colorado Bar on connecting with judges and researching jurors online (Part 1)."  My past Daily Record articles can be accessed here.

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Colorado on connecting with judges and researching jurors online

Last week I covered the first part of an opinion issued by the Colorado Bar Association Ethics Committee, Formal Opinion 127. I discussed the Committee’s conclusions regarding lawyers mining social media for evidence and then promised to address the second half of the opinion this week. So, today I’ll be covering the portion of the opinion where the Committee discusses whether it’s ethical for lawyers to connect with or research jurors and judges online.

At the outset, the Committee explained that online communications with jurors are no different than offline communications: “Essentially, communications between a lawyer and a juror through social media are no different than face-to-face communications or telephonic communications between a lawyer and a juror.”

Next the Committee opined that lawyers may view jurors’ public social media profiles without triggering any ethical issues, even in cases where the social media platform notifies the juror that the lawyer accessed his or her public profile. The Committee noted that it agreed with the American Bar Association’s take on this issue, since “in such circumstances, the lawyer is not communicating with the juror. Rather, the social media service is communicating with the juror based on a technical feature of the particular social media, consistent with agreements between the provider and the subscriber.”

The Committee likewise concluded that the same rationale applies to judges’ public social media profiles. Accordingly, lawyers may view the public profiles of judges before whom they have a case pending: “Judges who maintain a presence on social media should expect that attorneys and parties appearing before them will view the public portion of the judge’s profile. Similarly, lawyers should advise their clients to expect opposing counsel or their agents to view the public portions of their social media profiles.”

Next the Committee turned to issue of whether lawyers or their agents my request to view restricted portions of the social media profiles of jurors. The Committee concluded that doing so was impermissible: “Without express authorization from the court, any form of communication with a prospective or sitting juror during the course of a legal proceeding would be an improper ex parte communication, whether a lawyer or someone else acting on the lawyer’s behalf initiates the communication.”

Finally, the Committee addressed the issue of whether lawyers may request to connect with judges presiding over a case in which the lawyer Is Involved as counsel or as a party. This type of online behavior was also determined to be impermissible: “(Lawyers may participate) on social networking sites with judges…However, Colo. RPC 3.5 prohibits a lawyer from actively communicating ex parte with a judge during the period the lawyer is appearing as counsel or as a party before a judge, concerning or relating to the matter before that judge…A lawyer generally should not send a "friend request" to a judge while the judge is presiding over a case in which the lawyer is appearing as counsel or a party… At least one commentator has recommended that to eliminate any risks and to comply with Rule 3.5, a lawyer and judge who know they are part of the same restricted social network, and who learn that the lawyer is to appear in a matter before the judge, should "un-friend" one another.. While the Committee does not believe such steps are mandated, lawyers must be cautious about what they post on any social media network of which they know a judge is a member while they have legal matters pending before that judge.”

All in all this was a well-reasoned opinion that tackled a host of important ethical issues faced by 21st century lawyers. It’s well worth a read, even if you don’t practice law in Colorado, since it provides lots of background information on social media and sound conclusions regarding the ethics of lawyers interacting online with witnesses, parties, jurors, and judges.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Colorado Weighs In On Researching Social Media For Evidence (Part 1)

Stacked3This week's Daily Record column is entitled "Colorado Weighs In On Researching Social Media For Evidence (Part 1)."  My past Daily Record articles can be accessed here.

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Colorado Weighs In On Researching Social Media For Evidence (Part 1)

In November 2015, the Colorado Bar Association Ethics Committee issued an in depth and well-reasoned opinion covering many of the ethical issues lawyers encounter when trying to use social media to investigate their clients’ cases. Because Formal Opinion 127 addresses so many different topics, I’ll cover the Committee’s conclusions regarding how to ethically mine social media for evidence in this article. Next week I’ll focus on the Committee’s analysis regarding how to ethically connect with or research jurors and judges online.

At the outset of this opinion, the Committee wisely noted that online investigation is quite similar to research conducted offline: “In most respects, conducting investigations or discovery through social media is no different than performing these tasks by any other means.”

Next, the Committee tackled the ethical issues encountered when lawyers or their agents view information on social media that is publicly available and is not behind a privacy wall. The Committee agreed with the conclusion reached by most other jurisdictions and determined that there is no ethical bar to viewing information that is publicly available when mining social media for evidence: “Bar association ethics committees that have addressed this issue generally agree that lawyers may view any information publicly posted by a witness, or included on the public portion of that person’s social media profile. Such information is treated no differently from any other publicly available information or public record. The Committee believes that the same rule applies to the public portion of a social media profile or posting established by any…individual.”

The Committee then moved on to the ethics of attempting to access online information found behind a privacy wall. First the Committee explained that lawyers and their agents may not engage in deception to access restricted information. “Engaging in any form of deception to gain access to the restricted portion of a person’s social media profile violates Colo. RPC 8.4(c), and also violates Colo. RPC 4.1 if the lawyer’s actions occur during the representation of a client…Lawyers also may not circumvent the prohibition against seeking information through social media by means of deception by delegating investigative tasks to another person.”

Next the Committee explained that if a person is known to be represented by counsel, it is impermissible to request access to restricted online information without obtaining consent from the attorney. But, the ethical obligations of lawyers who attempt to view the restricted information of a person who is not represented by counsel, whether a party or witness, are different.

The Committee rejected the New York City Bar’s minority view that lawyers in this situation need not disclose anything more than their name and concluded that lawyers and their agents must provide information sufficient to allow the unrepresented person to make an informed decision about granting access to social media information behind a privacy wall. The Committee elaborated: “This means (1) providing the name of the lawyer requesting access or for whom the requesting person is acting as an agent, (2) disclosing that the lawyer is acting on behalf of a client, and (3) disclosing the general nature of the matter in connection with which the lawyer is seeking information. The lawyer also must identify the client if disclosure is necessary to avoid a misunderstanding regarding the lawyer’s role…and may have to explain that his or her client has interests opposed to those of the unrepresented party.”

Finally, the Committee considered the ethical obligations attorneys face when seeking to obtain information from another person who already has access to restricted portions of an individual’s social media account. The Committee explained that: “Under no circumstances may the lawyer request that the third person make requests for new or additional information from a party or witness if the lawyer would be legally or ethically prohibited from requesting or obtaining it directly. Moreover, the lawyer may not request the third person to engage in deceptive conduct to obtain access to new or additional information from a party or witness through social media.”

As I mentioned above, the Committee also addressed the issues lawyers encounter when attempting to connect with or research judges and jurors online. Check back next week to learn what conclusions the Committee reached regarding those issues.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


New York City Bar on Lawyers and LinkedIn

Stacked3This week's Daily Record column is entitled "New York City Bar on Lawyers and LinkedIn."  My past Daily Record articles can be accessed here.

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New York City Bar on Lawyers and LinkedIn

In December 2015, The Association of the Bar of the City of New York Committee on Professional Ethics addressed the issue of whether the use of LinkedIn by attorneys constitutes attorney advertising. While I agree with the committee’s conclusions (which I discuss below) and the overall approach toward the application of the ethical rules to attorneys using LinkedIn, my general sense of positivity toward Formal Opinion 2015-7 quickly dissolved as I attempted to wade through its more than 9,000 words.

That’s right, the opinion was, by my count, 9,008 words long. That’s a lot of verbiage to address what I’ve always maintained is a relatively simple principle: online behavior is merely an extension of offline conduct. As such, general guidelines regarding lawyers’ online activities are all that is needed. Specific case-by-case — or platform-by-platform — analysis is unnecessary, especially in light of the ever-changing nature of both online activities and online platforms.

Of course, I quickly realized (beginning at word 376) that the committee and I disagreed on that very point — hence their incredibly lengthy opinion targeted toward a single online platform. The committee opined: “(The ethics rules) created in the analog age defy easy extension to the digital world and, in particular, to social media content. Ethics committees tasked with providing guidance on these issues find themselves straining to force fit the proverbial square peg of social media into the round hole of legal ethics – with varying degrees of success.”

The committee then used the next 8,632 words of the opinion to reach the conclusion that, in most cases, lawyers can use LinkedIn and doing so doesn’t constitute attorney advertising.
You can either grab a cup of really strong coffee and attack the opinion yourself or, in the spirit of sharing and collegiality, I’m more than happy to summarize it for you in 400 words or less.

Without further ado, here’s the essence of the opinion in a nutshell.

Lawyers use LinkedIn in many ways, so “it should not be presumed that the primary purpose an attorney’s LinkedIn content is to attract new clients for pecuniary gain, unless it contains express language or other equally compelling evidence to support that conclusion.”

In order for an attorney’s LinkedIn Profile or other communications or content on LinkedIn to constitute attorney advertising, the following 5 conditions must be met:

“a) it is a communication made by or on behalf of the lawyer; (b) the primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain; (c) the LinkedIn content relates to the legal services offered by the lawyer; (d) the LinkedIn content is intended to be viewed by potential new clients; and (e) the LinkedIn content does not fall within any recognized exception to the definition of attorney advertising.”

If the attorney’s LinkedIn content meets all five of these requirements, “it is a communication that relates to the lawyer’s services and is primarily for the purpose of attracting new clients for pecuniary gain” it is attorney advertising, unless it falls within am exception to that rule. The applicable exceptions are:

“It is a communication with another lawyer or an existing client;
It is a communication with a former client that is germane to the former representation;
It is a communication in response to an inquiry from a potential client regarding the lawyer’s services;
It constitutes general marketing or branding, the purpose of which is to raise awareness about the lawyer’s services, rather than retention of the lawyer for a particular matter; or
It consists of topical or educational information, including information about legal developments in the lawyer’s practice area, unless it expressly encourages retention of the lawyer.”

Finally, should the LinkedIn content constitute attorney advertising, “the attorney must comply with the requirements of Rules 7.1, 7.4 and 7.5, including, but not limited to: (1) labeling the LinkedIn content “Attorney Advertising”; (2) including the name, principal law office address and telephone number of the lawyer; (3) pre-approving any content posted on LinkedIn; (4) preserving a copy for at least one year; and (5) refraining from false, deceptive or misleading statements.”

There. 365 words. You’re welcome.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Avoiding Internet scams and accompanying ethical issues

Stacked3This week's Daily Record column is entitled "Avoiding Internet scams and accompanying ethical issues."  My past Daily Record articles can be accessed here.

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Avoiding Internet scams and accompanying ethical issues

Earlier this year, the Association of the Bar of the City of New York Committee on Professional Ethics addressed the rising rate of Internet scams aimed at lawyers and provided both practical advice and ethical guidance in Formal Opinion 2015-3. At issue was the ethical duties of lawyers who suspect or discover that they are targets of an Internet-based trust account scams.


The committee first discussed the ethical obligations to potential clients, explaining that: “Even before an attorney-client relationship has formed, an attorney owes certain duties to prospective clients, including the duty to preserve confidential information, see Rule 1.18(b). Those duties do not apply, however, to someone who is merely posing as a “prospective client” but whose purpose is to defraud the attorney … (but) an attorney must exercise diligence in investigating prospective clients before concluding that they are not genuine and thus not owed any ethical obligations.”

Steps lawyers should take to ensure due diligence in vetting the potential client may include “verifying the accuracy of the information provided by the email sender, such as names, addresses, telephone numbers, website addresses, and referral sources.” The committee emphasized the importance of protecting other clients’ funds in a trust account by taking reasonable steps to ensure that all deposited funds remain in the trust account until the bank confirms that the funds have been honored or collected, noting that the fact that a check has “cleared” is insufficient.

The committee then concluded that if, after exercising due diligence, an attorney concludes the sender’s goal is to defraud, the attorney may report the incident to the authorities and provide background information and supporting documentation.

The committee also provided a very valuable and useful list of “red flag” signs that may indicate that a potential client is, in fact, attempting to defraud you:

• The email sender is based abroad;
• The email sender does not provide a referral source. (If the email sender is asked how he found the firm, he may respond that it was through an online search. If prospective clients rarely approach the recipient attorney based on an Internet search, this should be an immediate red flag);
• The initial email does not identify the law firm or recipient attorney by name, instead using a salutation such as “Dear barrister/solicitor/counselor;”
• The email uses awkward phrasing or poor grammar, suggesting that is was written by someone with poor English or was converted into English via a translation tool;
• The email is sent to “undisclosed recipients,” suggesting that it is directed to multiple recipients. (Alternatively, the attorney recipient may be blind copied on the email);
• The email requests assistance on a legal matter in an area of law the recipient attorney does not practice;
• The email is vague in other respects, such as stating that the sender has a matter in the attorney’s “jurisdiction,” rather than specifying the jurisdiction itself;
• The email sender suggests that for this particular matter the attorney accept a contingency fee arrangement, even though that might not be customary for the attorney’s practice;
• The email sender is quick to sign a retainer agreement, without negotiating over the attorney’s fee (since the fee is illusory anyway);
• The email sender assures the attorney that the matter will resolve quickly;
• The counterparty, if there is one, will also likely respond quickly, settling the dispute or closing the deal with little or no negotiation;
• The email sender insists that his funds must be wired to a foreign bank account as soon as the check has cleared. (The sender often claims that there is an emergency requiring the immediate release of the funds); or
• The email sender or counterparty sends a supposed closing payment or settlement check within a few days. The check is typically a certified check or a cashier’s check, often from a bank located outside of the attorney’s jurisdiction.

Take this advice to heart, dear readers. Stay alert and take steps to ensure that you’re not the next lawyer victimized by an Internet scam.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Massachusetts Adopts New Disciplinary Rules on Tech Use

Stacked3This week's Daily Record column is entitled "Massachusetts Adopts New Disciplinary Rules on Tech Use."  My past Daily Record articles can be accessed here.

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Massachusetts Adopts New Disciplinary Rules on Tech Use

Technological change has increased dramatically in recent years, making it difficult for lawyers to keep up. Confusion over the ethical obligations of lawyers when using new technologies only makes adoption of new tools such as cloud computing all the more difficult. Fortunately, many states have gradually rolled out revised ethics rules designed to address these issues.

Most recently, on July 1, the revised Massachusetts Rules of Professional Conduct became effective. These new rules included revisions to sections addressing the obligation to maintain the confidentiality of client information when using new technologies and the duty to stay abreast of changes in technology.

The new provisions and the comments thereto largely mirror the revised Model Rules adopted by the American Bar Association a few years ago. The revised rules include changes which clarify the obligations of lawyers when it comes to using technology in their law practices.

First, Comment 8 to Rule 1.1, which addresses the duty of competence, was revised to require lawyers to stay abreast of changes in technology. It now states that “(t)o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.”

Next, Rule 1.6(c) now provides that a “lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information relating to the representation of a client.” In newly added Comment 18 to Rule 1.6 it states that if a lawyer makes reasonable efforts to prevent access or disclosure of confidential information, then the inadvertent or unauthorized disclosure of confidential information is not a violation of this section.
As explained in the comment, “[f]actors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients …”

Finally, the new rules also address an attorney’s obligation when using a third-party provider, such as a cloud computing software vendor, to store confidential client information. Rule 5.3, which requires lawyers to make reasonable efforts to ensure the security of their client’s confidential information when hiring an outside technology vendor, now includes Comment 3.

This comment explicitly states that “(a) lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of retaining an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information.”

But, when lawyers do so, they are required to “make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality … When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer.”

The comments to this section, including the comment set forth above, do not imply that lawyers have a duty to supervise nonlawyers, such as software vendors, whom they’ve hired and who work outside of the firm. Instead, the comments indicate that lawyers must provide the appropriate levels of oversight given the circumstances to ensure services are provided in a way that protects confidential client information.

In the past I’ve expressed concern regarding mandates in other jurisdictions which require lawyers to supervise cloud computing providers in the performance of their duties, even though most lawyers have no IT expertise. I don’t see that being an issue in this case in light of the language used in this comment.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.


Wisconsin weighs in on the ethics of cloud computing

Stacked3This week's Daily Record column is entitled "Wisconsin weighs in on the ethics of cloud computing ."  My past Daily Record articles can be accessed here.

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 Wisconsin weighs in on the ethics of cloud computing 

In March, Wisconsin joined the ranks of many other jurisdictions and addressed the ethics of lawyers using Web-based computing in their practices. At issue in Wisconsin Formal Ethics Opinion EF-15-01 was how lawyers could ethically use cloud computing services to store confidential client information.

At the outset, the committee acknowledged that the issue was not whether lawyers could use cloud computing, but instead, how to go about ethically using cloud computing services: “As cloud computing becomes more ubiquitous and as clients demand more efficiency, the question for counsel is no longer whether to use cloud computing, but how to use cloud computing safely and ethically.”

The committee agreed with the other jurisdictions that have addressed the issue and concluded that lawyers may ethically use cloud computing in their practices: “(C)loud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it … (L)awyers must make reasonable efforts to protect client information and confidentiality as well as to protect the lawyer’s ability to reliably access and provide information relevant to a client’s matter when needed. To be reasonable, those efforts must be commensurate with the risks presented. Lawyers must exercise their professional judgment when adopting specific cloud-based services, just as they do when choosing and supervising other types of service providers.”

The committee explained that client consent is not required, but in certain cases, may be advisable and also addressed a lawyer’s obligations in the event of a breach: “While a lawyer is not required in all representations to inform clients that the lawyer uses the cloud to process, transmit or store information, a lawyer may choose, based on the needs and expectations of the clients, to inform the clients. A provision in the engagement agreement or letter is a convenient way to provide clients with this information … If there has been a breach of the provider’s security that affects the confidentiality or security of the client’s information, SCR 20:1.4(a)(3) and SCR 20:1.4(b) require the lawyer to inform the client of the breach.”

Importantly, the committee confirmed that absolute security is not required and is an impossibility, since “(l)awyers are not required to guarantee that a breach of confidentiality cannot occur when using a cloud service provider, and … are not required to use only infallibly secure methods of communication.”

The committee then explained that lawyers do have a duty to make reasonable efforts to secure client data and identified factors to consider when assessing the risks. According to the committee “(t)hese factors, which are not exclusive,” include:
• the information’s sensitivity;
• the client’s instructions and circumstances;
• the possible effect that inadvertent disclosure or unauthorized interception could pose to a client or third party;
• the attorney’s ability to assess the technology’s level of security;
• the likelihood of disclosure if additional safeguards are not employed;
• the cost of employing additional safeguards;
• the difficulty of implementing the additional safeguards;
• the extent to which the additional safeguards adversely affect the lawyer’s ability to represent clients;
• the need for increased accessibility and the urgency of the situation;
• the experience and reputation of the service provider;
• the terms of the agreement with the service provider; and
• the legal and ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality.”

Finally, the committee wisely noted that an elastic standard of reasonableness was required and the factors listed were simply recommendations since “lawyers’ ethical duties are continually evolving as technology changes.” Specific requirements would soon become obsolete.

Moreover, the risks vary with the technology involved, the type of practice and the individual needs of a particular client. Lawyers must exercise their professional judgment in adopting specific cloud-based services, just as they do when choosing and supervising other types of service providers, and specific requirements would do little to assist the exercise of professional judgment.”

Also of note was Appendix A to the opinion, which included a useful and in-depth summary of the various cloud computing ethics opinions issued thus far from other U.S. jurisdictions. The Appendix alone is a useful source of information, while the opinion as a whole provides valuable insight into the issues presented when lawyers use cloud computing tools in their practices and provides a measured and thoughtful framework for lawyers seeking to implement any type of new technology into their practices.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.